Research › Search › Judgment

Gujarat High Court · body

2022 DIGILAW 745 (GUJ)

Indumatiben Girjashaner Oza v. State Of Gujarat

2022-06-09

A.P.THAKER

body2022
JUDGMENT : 1. By way of preferring this petition under Article 226 of the Constitution, the petitioner has sought the following reliefs: “[A] YOUR LORDSHIPS may be pleased to admit and allow this petition. [B] YOUR LORDSHIPS may be pleased to call for R & P from the Office of the respondent No.2 – Collector, Surendranagar. [C] YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, by directing the respondent No.2, Collector, Surendranagar, its officers, employees, agents and servants, to follow. the order dated 6/6/2007 – 14/6/2007 passed by the Joint Secretary, Revenue Department [Appeals] in Revision Application No. MVV/BKP/SNR/4/2007, at Annexure “J” to the petition, in the interest of justice. [D] YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, by directing the respondent No.2, Collector, Surendranagar, its officers, employees, agents and servants, to grant application for N.A. Permission filed by the petitioner, dated 7/8/2006, at Annexure “F” to the petition. 7. [E] Pending admission, hearing and final disposal of this petition, YOUR LORDSHIPS may be pleased to direct the respondent No.2, Collector, Surendranagar, its officers, employees, agents and servants, to follow the order dated 6/6/2007 – 14/6/2007 passed by the Joint Secretary, Revenue Department [Appeals] in Revision Application No. MV V/BKP/SNR/4/2007, at Annexure “J” to the petition, in the interest of justice. [F] YOUR LORDSHIPS may be pleased to pass such other and further relief in favour of the petitioner, as deemed just and proper, in the facts and circumstances of the case.” 2. The brief facts giving rise to the present petition are as under: 2.1 That vide registered sale deed dated 22.04.1974, the husband of the petitioner, namely late Oza Girjashanker Narottamdas purchased the land bearing old survey No. 2988, admeasuring A 12-30 G, situated at the sim of Halvad, Dist. Surendranagar. This land was purchased from the original owners namely, [1] Kumbhar Karsanbhai Dayabhai, [2] Kumbhar Baldevbhai Dayabhai, [3] Kumbhar Maganbhai Dayabhai, [4] Kumbhar Bhikhabhai Shamjibhai, [5] Kumbhar Bai Jiviben Dayabhai, [6] Ben Shanta Dayabhai. Surendranagar. This land was purchased from the original owners namely, [1] Kumbhar Karsanbhai Dayabhai, [2] Kumbhar Baldevbhai Dayabhai, [3] Kumbhar Maganbhai Dayabhai, [4] Kumbhar Bhikhabhai Shamjibhai, [5] Kumbhar Bai Jiviben Dayabhai, [6] Ben Shanta Dayabhai. 2.2 That another piece of land bearing old Survey No. 2991, admeasuring A 3-13 G (new Survey No. 2549, admeasuring A 3-8 G) was purchased by late Oza Girjashanker Narottamlal by way of registered sale deed from [1] Dalwadi Shamjibhai Chonda, [2] Dalwadi Premjibhai Chonda, and [3] Dalwadi Vithalbhai Lakhman. This land originally belonged to the father of the sellers, namely, Dalwadi Chonda Moti, who had expired, and his two sons, namely, Shamjibhai Chonda and Premjibhai Chonda, and his third son had died at the time of the register of sale deed, namely Lakhman Chonda, his son Vithalbhai Lakhman and his deceased wife Baluben Chonda. 2.3 That the necessary revenue entries were mutated bearing No. 949 dated 30.06.1974 and were also certified. That name of the petitioner’s late husband was also entered into village form No. 7/12 abstract and after his death, the name of the petitioner has been entered. 2.4 That vide order dated 09.12.2006, the Mamlatdar, Halvad passed an order of consolidating six survey numbers being revenue survey Nos. 2548, 2549, 2550, 2552, 2553, 2554, and the new number was given for all the consolidated pieces of land being survey No. 2548 of Halvad, Taluka: Halvad, Dist: Surendranagar. The petitioner applied for conversion of land from agriculture purpose to non-agriculture purpose of survey No.2548 vide application dated 07.08.2006. All the authorities have given No Objection Certificates for consideration of the said application for grant of non-agriculture permission. That vide certificate dated 13.02.2007, the Mamlatdar – Halvad also gave a certificate, under Rule 111 and 112 of the Code, stating that, from the revenue record village form No.7/12, promulgation has been made on the respective dates which were mentioned in the certificate. That the requisite procedure of the amount through challan, fulfilling all the formalities which are required to be fulfilled when conversion is prayed for, have been fulfilled by the petitioner. That the requisite procedure of the amount through challan, fulfilling all the formalities which are required to be fulfilled when conversion is prayed for, have been fulfilled by the petitioner. However, respondent No.2 Collector–Surendranagar vide his order dated 12.02.2007, rejected the same mainly on the ground that both the survey numbers were sold by heirs of the original owner and that the entries of the heirs were not made at that point of time i.e., way back in the year 1974 and on that basis it was observed that the title of the land is not clear. 2.5 The order of the Collector came to be challenged by the petitioner by way of Revision Application before the Learned Special Secretary, Revenue Department (for short “SSRD”) being Revision Application No. MVV/BKP/SNR/4/2007. The said revision was allowed by the Joint Secretary [Appeals] vide his order dated 06.06.2007 and the matter was remanded to the respondent No.2 Collector, Surendranagar. It was observed by the Ld. SSRD that registered sale deeds have been made way back in the year 1974; that the heirs have never raised objections; that the entries of sale have not been challenged; and that the petitioner is entitled to pray for the conversion of land. 2.6 After the remand, the Collector did not pass any order in the matter for granting conversion of land from agriculture purpose to non-agriculture purpose. No action was taken by the Collector in the aforestated matter. 2.7 Being aggrieved by the inaction on the part of the respondent No.2 Collector, Surendranagar, the petitioner has approached this Court by way of this petition. 3. It appears from the records that Indumatiben Girjashanker Oza moved an application for permitting her to contest the petition as an individual as the power of attorney executed in favour of Shri Himanshu Chandulal Thakkar has been canceled by her. Initially this prayer was granted with the direction that Himanshu Thakkar to be made as a party – respondent. However, it appears from the record that thereafter Indumatiben Oza died and Himanshu Thakkar filed an application for transposing him as a petitioner, which application being Civil Application No. 6601 of 2009 came to be allowed vide order dated 07.07.2015. Thus, now the said Himanshu Chandulal Thakkar is treated as a petitioner, therefore, objections filed by Hasmukhbhai as a party – respondent does not require to be considered. 4. Thus, now the said Himanshu Chandulal Thakkar is treated as a petitioner, therefore, objections filed by Hasmukhbhai as a party – respondent does not require to be considered. 4. Further, it also appears from the record that during the pendency of the petition other private respondents have been joined as a party – respondents, who have not filed any affidavit-in-reply contesting the petition. 5. It appears from the record that one Mr. P.D. Palsana, Resident Deputy Collector, Surendranagar has filed one affidavit, inter-alia, supporting the initial order of the Collector rejecting the application on the ground of non-clearance of the titles. 6. Heard learned Senior Counsel Mr. Anshin H. Desai for the petitioner and Mr. Nikunj Kanara, learned Assistant Government Pleader for the State. Initially, none remained present for the private respondent No.3. However, written submissions have been filed on behalf of the petitioner as well as respondent No.3 which are taken on records. 7. Learned Senior Counsel Mr. Desai has vehemently submitted the same facts which are narrated in the Memo of petition which are already referred to herein-above. He has vehemently submitted that it is not the jurisdiction of the Collector to deal with the title of the land while dealing with the application for non-agriculture permission. He has submitted that when the order of the Ld. Collector was set aside by the Ld. SSRD and matter was remanded back for granting necessary non-agriculture permission, the Ld. Collector ought to have passed appropriate order of granting non-agriculture permission to the petitioner. He has submitted that however, in the present case, the Collector has not taken any action and kept silent. He has also submitted that now it is a well-settled principle of law that non-agriculture permission is given to the land and not to the holder, therefore, the title is not to be looked into. He has submitted that the original transaction was of the year 1974, and therefore, at the time of rejection of the application for non-agriculture permission almost 33 years was passed and the heirs of the original owners have never challenged the sale deed nor challenged the revenue entries, and therefore, there was no ground for rejection of the non-agriculture application preferred by the petitioner. He has also submitted that since the original petitioner, who has granted power of attorney to the present petitioner has died and there was a further special power of attorney, coupled with the interest, executed in favour of the present petitioner, the present petitioner has the right and authority to continue with the matter and seek appropriate relief. He has submitted that considering the facts and circumstances of the case the Collector may be directed to pass appropriate order granting non-agriculture permission to the petitioner. He has relied upon the following decisions in support of his submission: I. Bhayabhai Vajshibhai Hathalia & Ors. Vs. State of Gujarat & Ors. reported in 2012 (2) GLR 1741 ; II. Manjibhai Nagjibhai Mangukia Vs. Special Secretary (Appeals), Revenue Department & Ors. reported in 2015 (3) GLR 2660 ; III. State of Gujarat Vs. Patel Raghav Natha & Ors. reported in AIR 1969 SC 1297 ; 8. Per contra, learned Assistant Government Pleader Mr. Kanara has supported the order of the Collector and submitted that since there was a defective title of the petitioner, the Collector has rightly rejected the non-agriculture permission. He has prayed to dismiss this petition. 9. In the written submissions made on behalf of the respondent No.3, wherein it has been contended that since the grantor of the power of attorney i.e., deceased Indumatiben Oza has already died and she has already canceled that power of attorney given to the present petitioner, the petition itself is not maintainable in absence of the legal heirs of deceased Indumatiben Oza. It is also contended that Hasmukhbhai has already filed Special Civil Suit for specific performance of the contract against the deceased Indumatiben Oza and in that matter heirs of Indumatiben Oza have been joined. It is also contended that as the petitioner is relying upon the agreement to sale, no right or title has been vested in him, and therefore, till the decision of the Civil Suit, the present petitioner Himanshubhai has no locus standi. It is also contended that since there was a defect in the title, the Collector has properly passed the order. It is also contended that permission of non-agriculture is an administrative action and not a quasi-judicial order and therefore, even the Ld. SSRD has no jurisdiction to quash the order of the Collector and this Court has no jurisdiction. It is also contended that since there was a defect in the title, the Collector has properly passed the order. It is also contended that permission of non-agriculture is an administrative action and not a quasi-judicial order and therefore, even the Ld. SSRD has no jurisdiction to quash the order of the Collector and this Court has no jurisdiction. The reliance has been placed on the decision in the case of Yashkamal Builders, Baroda Vs. State of Gujarat reported in 1989 (1) GLR 382 as well as the decision of this Court dated 04.01.2016 passed in Special Civil Application No. 12375 of 2015 in the case of Virendra Shivshankar Adhvaryu Vs. State of Gujarat and 14 Ors. for the proposition that in respect of the execution of an agreement to sale if the civil case is pending, the agreement holder cannot be said to have any right or interest into the land in question till he gets any order from the Civil Court recognizing his right in the land for which agreement to sale is executed. On this ground, prayer is made to dismiss the present petition. 10. Having considered the submissions made on behalf of both the sides coupled with the material placed on the record and the decision cited at the bar, it emerges that there is no dispute regarding the facts that deceased Girjashanker Oza has purchased various parcels of land in the year 1974 from the heirs of the original owners. It is also admitted facts that on the basis of the sale deeds appropriate revenue entries have been mutated in the revenue records which were certified way back in the year 1974 itself. It is also an undisputed fact that deceased Indumatiben Oza through the present petitioner has applied for non-agriculture permission in the year 2007. It also reveals from the record that as per the procedure required to be carried out for issuance of N.A., necessary No Objection Certificates were obtained from the respective concerned authorities. It also reveals that all the authorities have granted No Objection in favour of the petitioner for grant of non-agriculture permission. It appears that the Ld. It also reveals from the record that as per the procedure required to be carried out for issuance of N.A., necessary No Objection Certificates were obtained from the respective concerned authorities. It also reveals that all the authorities have granted No Objection in favour of the petitioner for grant of non-agriculture permission. It appears that the Ld. Collector has rejected the said application mainly on the ground that while promulgation exercise and after the death of the original owner, name of heirs were not mutated in the revenue records, and therefore, the title of the land is not clear in favour of the purchaser. 11. At this juncture, it is pertinent to note that the Collector was dealing with the RTS proceedings and he was to decide as to whether N.A. permission under Section 65 of the Gujarat Land Revenue Code be granted or not? He was not dealing with the question of title of the land. Now it is a well-settled by catena of the decision by this Court that proceedings under Section 65 of the Code is not an adversaid value proceeding at all. It is merely an act of granting permission by the authority qua the piece of land in question. The permission is attached to the land in question and not to the person. The N.A. permission under Section 65 cannot be said to be in any manner confirming and/or abridging the title of anyone if it exists on the land in question. Therefore, the question of title cannot be decided by the Collector. If any person has a grievance against the title of the land, then such person has to approach the Civil Court for adjudication of his right. However, in no case, the Collector can decide the question of title under the proceedings under Section 65 of the Code. 12. Now considering the facts of this case, it is crystal clear that the sale deeds are of the year 1974 and the owners of the land or heirs thereof have never challenged the same before any Civil Court even none of them have challenged the mutation entry made in the year 1974 on the basis of the registered sale deed. Now considering the facts of this case, it is crystal clear that the sale deeds are of the year 1974 and the owners of the land or heirs thereof have never challenged the same before any Civil Court even none of them have challenged the mutation entry made in the year 1974 on the basis of the registered sale deed. Further, when the non-agriculture permission is attached with the land, the question as to whether the petitioner is a power of attorney holder or owner, or himself does not need to be decided in such application. Therefore, the contention raised by respondent No.3 in the written submissions regarding the non-maintainability of the petition is not acceptable. Even if the present petitioner Himanshubhai has filed a suit for specific performance of agreement to sale against the original owner deceased Indumatiben Oza or her heirs, does not take away the right of a person, who has applied for the non-agriculture permission, which is attached to the land and not to the person concerned. 13. Therefore, considering the facts and circumstances of the present case, it clearly reveals that the Ld. Collector has exceeded his jurisdiction and he ought to have followed the direction of the Ld. SSRD wherein regarding factual aspects, it has already been observed in favour of the petitioner for grant of non-agriculture permission. When the higher authority has directed the subordinate authority to act and decide the matter, then it is an incumbent duty on the part of the subordinate authority to decide the matter which has been remanded by the higher authority in a prompt manner and in accordance with the observations made by the higher authority. In the present case, it appears that Ld. Collector, Surendranagar, for reasons best known to him, has adopted adamant attitude in taking the decision in the matter of appreciation for N.A. permission as preferred by the petitioner. Under these circumstances, the present petition deserves to be partly allowed directing the Ld. Collector to decide the application of non-agriculture permission filed by the petitioner in the year 2007 in accordance with law and in consonance with the observations made by this Court. 14. In view of the above discussion, the present petition deserves to be partly allowed. Hence, the present petition is partly allowed. The Ld. Collector to decide the application of non-agriculture permission filed by the petitioner in the year 2007 in accordance with law and in consonance with the observations made by this Court. 14. In view of the above discussion, the present petition deserves to be partly allowed. Hence, the present petition is partly allowed. The Ld. Collector, Surendranagar is hereby directed to decide the application of the non- agriculture permission of the petitioner pending before him, which were remanded back by the Ld. SSRD to him afresh, after affording an appropriate opportunity of being heard to the petitioner and keeping in mind observations made by this Court as aforesaid. Such exercise be completed by the Ld. Collector within a period of three months from the date of receipt of this order. 15. There shall be no order as to costs. Rule is made absolute to the aforesaid extent. Direct service is permitted.